1.1 Methods of Dispute Resolution Flashcards
What non-exhaustive factors can the court consider to determine the reasonableness of ADR?
Nature of dispute
Merits
Other settlement methods attempted?
ADR costs disproportionately high
Delay in ADR > Prejudicial?
ADR process > Reasonable prospect of success
Refuse/NOT respond to ADR > Costs sanctions
What are the advantages of ADR?
Advantages
- Time saving
- Cost saving
- Choice, control, flexibility
- Confidentiality
- Maintain good relations
Disadvantages
- Delay
- Cost
- Exposing a good hand
- Lack of impact on limitation
What is arbitration?
Common, similar to court procedure
Parties pay and appoint arbitrator
Binding and final outcome > Court enforcement
Arbitration agreement
Case management procedure
What are the advantages of arbitration?
Advantages
- Confidentiality
- Flexibility
- Appoint arbitrator w appropriate experience
- Easily enforce award
Disadvantages
- Costs likely similar to court proceedings
- Losing party > Pay arbitrator expenses + winning party’s expenses
- NO binding precedent
- Rare appeal
What are the advantages and disadvantages of mediation?
Advantages
- Cheaper
- Parties’ control
- Confidentiality
- Flexibility
- Experienced mediator > Can assist settlement
Disadvantages
- NO guarantee settlement
- Mediator > NO power over parties
- Parties’ relations > Mediation NOT suitable
What are the advantages and disadvantages of negotiation?
Advantages
- Cost effective
- Parties’ control
- Confidentiality
Disadvantages
- Lack of independent TP
- Difficult to achieve settlement
What are the advantages and disadvantages of conciliation?
Advantages
- Cheaper
- Parties’ control
- Confidentiality
- Settlement options may be attractive
Disadvantages
- NO guarantee settlement
- Parties’ relations > Mediation NOT suitable
What are the advantages and disadvantages of executive tribunal?
Advantages
- Cheaper
- Confidentiality
- More imaginative, practical outcomes
- Discuss dispute at executive level > Settlement barriers possible
Disadvantages
- Significant preparation
- Process > Adversarial/Hinder settlement
What are the advantages and disadvantages of early neutral evaluation?
Advantages
- Cost effective
- Assist parties > Determine pros and cons
Disadvantages
- Settlement difficult if evaluation strongly in one party’s favour
- Costs disproportionate to litigation costs
- NOT test facts
What are the advantages and disadvantages of expert determination?
Advantages
- Cheaper
- Confidence (Parties > Judge)
Disadvantages
- NOT test law/facts
What is adjudication?
Disputes (Housing Grants, Construction and Regeneration Act 1996)
Parties’ agreement
Interim binding outcome
- Arbitration/Court > Final determination
Adjudicators’ decision > Within 28 days
What are the advantages and disadvantages of adjudication?
Advantages
- Fast
- Cost effective
- Confidential
- Loser NOT pay Winner’s costs
Disadvantages
- Time limits (less than 7 days to draft pleadings)
- Winner NOT pay Loser’s costs
